Gujarat High Court
Pankajbhai Bhalabhai Patel vs State Of Gujarat on 21 March, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/899/2022 JUDGMENT DATED: 21/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 899 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PANKAJBHAI BHALABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
Mr. M.S.Shah learned senior advocate with
Mr.Y.J.Patel for the petitioners
Mr.Anshin Desai, learned senior advocate with
Mr.Ashit Joshi for Respondent Nos.6 to 8
Mr.Akash Chhaya, learned Assistant Government Pleader for
Respondent Nos.1 to 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 21/03/2022
ORAL JUDGMENT
1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for writ of mandamus or a writ in the nature of mandamus or Page 1 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 writ of certiorari or writ in the nature of certiorari and prayed for quashing and setting aside the order dated 14.10.2021 passed by the learned Gujarat Revenue Tribunal, Ahmedabad in proceedings being No.TEN / BA / 127 of 2017 whereby the Gujarat Revenue Tribunal confirmed the order dated 17.04.2017 passed by the Deputy Collector, Daskroi in Ganot Case No.28 of 2014 as well as order dated 18.01.2010 passed by the learned Mamlatdar, Daskroi in Ganot Case No.11 of 2007.
2. Heard learned senior advocate Mr.M.S.Shah with learned advocate Mr.Y.J.Patel for the petitioner, learned senior advocate Mr.Anshin Desai with learned advocate Mr.Ashit Joshi for Respondent Nos.6, 7 and 8 and learned Assistant Government Pleader Mr.Akash Chhaya for Respondent Nos.1, 2 and 3.
3.1 By consent of the parties, matter was heard finally on 24.01.2022 and as both the learned advocates for contesting parties requested for permitting them to place on record the written submissions matter was listed on 28.02.022. On 28.02.2022 learned advocates for the parties submitted their written submissions and thereafter the matter was kept 'for orders'.
3.2 Since the matter was heard finally, Rule. Learned advocate Mr.Ashit B. Joshi waives service of notice of Rule on behalf of Respondent Nos.6, 7 and 8 and learned Assistant Government Pleader waives service of notice of Page 2 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 Rule on behalf of Respondent Nos.1, 2 and 3 - State Authorities.
3.3 What is challenged by way of this petition is the orders passed by the Mamlatdar & ALT, the Deputy Collector (Land Reforms) and Gujarat Revenue Tribunal whereby issuance of writ of certiorari is sought for. Further, since there was an agreement amongst the parties that rest of the respondents' presence would not be required for the purpose of determining the issue, the matter was heard finally without waiting for other parties to be served and to appear before this Court.
4. Brief facts giving rise to the present petition are stated as under:
4.1 It is the case of the petitioners that the petitioners are the tenants of the land bearing (i) revenuer survey No.587 Block No.111 admeasuring 0-88-0.2 Hec.Are.Sq mtr, (ii) revenue survey No.590 Block No.130 admeasuring 0-58-68 Hec.Are.Sq mtr, (iii) revenue survey Nos.33 and 36 Block No.25 admeasuring 1-43-66 Hec.Are.Sq mtr and (iv) revenue survey No.27/1, 28 Block No.22 admeasuring 0-59-69 Hec.Are.Sq mtr, all situated at Hathijan, Tal.Vatva, Dist.Ahmedabad.
4.2 It is the claim of the petitioners that the original owner in respect of the land in question viz. Babulal Karsandas Kansara, whose legal heirs are joined as Respondent Nos.4.1 to 4.5, by virtue of agreement dated Page 3 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 17.05.1988 handed over possession of the land in question to the present petitioners and since then the petitioners are in possession of the land in question.
4.3 As per agreement dated 17.05.1988, the petitioners were to cultivate the land in question, however, before that certain purchase was made by the petitioners and separate account was also maintained by the petitioners.
In the year 1898-99 the ONGC acquired part of the land from the aforesaid survey numbers for which compensation was also paid to the present petitioners.
4.4 As far as the lands bearing Survey No.27/1, 28, 33 and 36 are concerned, the same were purchased by way of registered sale-deed executed on 08.06.1988 by deceased Babulal Kansara, Vrajlal Kesavji and Bhogilal Jamnadas from the original land owners. They also purchased the land bearing Survey No.587 Block No.111 Survey No.590 Block No.113 from the original owners by way of registered sale-deed dated 07.12.1991.
4.5 Thereafter vide sale-deed dated 22.09.2011 the legal heirs of deceased Babulal Kanshandas Kansara and heirs of deceased Vrajlal Kansara have sold the lands bearing Survey No.587 Block No.111 and Survey No.113 Block No.590 to Respondent Nos.10 to 17, vide sale-deed dated 14.02.2013 have sold the lands bearing Survey Nos.27/1 and 28, Block No.22 to the wife of Power of Attorney Holder of Respondent Nos.6 to 8 and Respondent No.14 Page 4 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 and vide sale-deed dated 14.02.2013 have sold the lands bearing Survey Nos.33 and 37, Block No.25 to the wife of Power of Attorney Holder of Respondent Nos.6 to 8 and Respondent Nos.12 to 18.
4.6 Since the petitioners were cultivating the land in question, on 30.03.2001 the petitioners filed an application to the revenue authorities for mutating his name in the Village Form No.7/12 in respect of land bearing Survey No.112, 87, 22, 25, 700, 111 and 113 situated at Hathijan, Tal.Daskroi, Dist.Ahmedabad. In between, in respect of the proceedings before the Collector, the Collector, Ahmedabad in LB / Revision / 66 / 2003 vide order dated 31.08.2004 held that the Respondent Nos.6 to 8 were not the agriculturists and hence the proceedings under Section 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act', for short) were initiated in respect of transfer of land in favour of Respondent Nos.6 to 8.
4.7 Similarly in respect of different parcels of land, the proceedings under Section 63 of 'the Tenancy Act' were initiated which ultimately culminated into the proceedings under Section 84(C) of 'the Tenancy Act', however, those proceedings were challenged by the Respondent Nos.6 to 8 by way of Tenancy Appeal Nos.7, 9 and 31 of 2010, Tenancy Appeal No.7 and 9 of 2005 and Tenancy Appeal No.52 of 2006 and ultimately vide order dated 10.08.2011 passed by the Deputy Collector, the Page 5 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 proceedings under Section 84(c) of 'the Tenancy Act' were dropped. As the order dated 10.08.2011 and 06.09.212 are not challenged any more and have become final, as they have attained finality, to simplify the facts, details of each and every proceedings are not stated elaborately.
4.8 Ultimately since in the year 2007 when the Revenue Authorities passed various orders directing the initiation of proceedings under Section 63 of 'the Tenancy Act' as well as Section 84(c) of 'the Tenancy Act', the present petitioners preferred an application before the Mamlatdar, Daskroi being Ganot Case No.11 of 2006 under the provisions of Section 70B of 'the Tenancy Act' and prayed for holding and declaring that the petitioners are tenants in respect of land bearing Survey No.587 Block No.111, Survey No.590 Block No.113, Survey No.33 and 36 Block No.25 and Survey No.27/1 and 28 Block No.22. The aforesaid application was rejected by the Mamlatdar, Daskroi vide order dated 18.01.2010. Being aggrieved by and dissatisfied with the aforesaid order dated 18.01.2010, the petitioner preferred Ganot Appeal No.28 of 2014. However, vide order dated 17.04.2017 the Deputy Collector (Land Reforms and Appeal), Ahmedabad rejected the appeal preferred by the petitioner. Being aggrieved by the said rejection of Tenancy Appeal No.28 of 2014 by the Deputy Collector, Daskroi, the petitioner challenged the order dated 17.04.2017 by way of Revision Application before the Page 6 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 Gujarat Revenue Tribunal which was numbered as Revision Application No. TEN / BA / 127 of 2017 and ultimately the Revision Application preferred by the petitioner was also rejected by Gujarat Revenue Tribunal vide order dated 14.10.2021 and hence being aggrieved by and dissatisfied with the aforesaid orders the present petitioner has challenged all three orders i.e. (i) the order passed by the Mamlatdar, dated 18.01.2010 in Tenancy Case No.11 of 2007, (ii) the order passed by the Deputy Collector dated 17.04.2017 in Ganot Case No.28 of 2014 and (iii) the order passed by the Gujarat Revenue Tribunal dated 14.10.2021 in TEN / BA / 127 of 2017 by way of this petition.
5. Heard learned senior advocate Mr.M.S.Shah with learned advocate Mr.Y.J.Patel for the petitioner.
6.1 Learned senior advocate Mr.Shah submitted that as far as Block Nos.22 and 25 are concerned, the original owners in respect of the land in question have executed the agreement dated 17.05.1988 with the present petitioners and, therefore in view of that agreement the present petitioners can be said to be 'tenants' in respect of the land in question. He submitted that as far as the proceedings under Sections 63 and 84(C) of 'the Tenancy Act' are concerned, they were initiated against the present Respondent Nos.6 to 8 which was challenged by Respondent Nos.6 to 8 and ultimately quashed and set aside by the Deputy Collector, Ahmedabad and the Page 7 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 present petitioners were not party to those proceedings and, therefore, those proceedings and the orders passed therein would not bind the present petitioners.
6.2 As regards Block No.111 and 113 are concerned, learned senior advocate Mr.Shah submitted that on 06.09.2019 the Deputy Collector, Ahmedabad passed an order in respect of Block No.22 and 25 only and quashed and set aside the order dated 29.04.2006 passed by the Mamlatdar & ALT, Daskroi whereby the Mamlatdar and ALT, Daskroi in Tenancy Case No.15 of 2004 conducted the inquiry under Section 84(C) of 'the Tenancy Act' and vide order dated 29.04.2006 by declaring the Respondent Nos.6 to 8 as 'non-agriculturists' by considering it as breach of Section 63 of 'the Tenancy Act', vested the land into Government. However, the Deputy Collector while quashing and setting aside the order passed by the Mamlatdar and ALT dated 29.04.2006 vide order dated 06.09.2012, the aforesaid order was passed only in respect of Block No.22 and 25 only and not in respect of Block No.111 and 113. As far as orders in respect of Block No.111 and 113 are concerned, proceedings under Sections 63 and 84(C) of 'the Tenancy Act'were dropped by Mamlatdar and ALT vide order dated 17.08.2011. However, for that Tenancy Appeal No.3 of 2010 is pending before the Deputy Collector, Ahmedabad and, therefore, proceedings cannot be said to have concluded.
6.3 Learned senior advocate Mr.Shah submitted that as Page 8 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 far as Block No.111 and 113 are concerned, it was believed by Revenue Authorities that Respondent Nos.6 to 8 were not agriculturists and no proceedings were dropped in respect of Block No.111 and 113. Despite that in the year 2011 vide registered sale-deed dated 22.09.2011 the land bearing Block No.111 and 113 were sold to Respondent Nos.10 to 17.
6.4 Learned senior advocate Mr.Shah further assailed the order passed by the Mamlatdar and ALT, Ahmedabad dated 18.10.2010 by submitting that before Mamlatdar and ALT, though the documents were produced in the nature of end numbers of written books of account, purchase bills, notice by ONGC, it was observed by Mamlatdar and ALT that no documents were produced before it. Mr.Shah submitted that bar of Section 4 of 'the Act' would not apply in the case of the present petitioner as they are distant relatives of Ambalal Marghabhai. He submitted that limitation prescribed under the Mamlatdar Court Act, 1906 of six months would not applicable in the case of proceedings under Section 70B of 'the Tenancy Act'. He further submitted that petitioner would be covered as per Section 2(18) of the Act. He submitted that documents produced by the petitioner were not considered in its true perspective by the Mamlatdar and ALT, Ahmedabad and though two independent witnesses were examined, the Mamlatdar and ALT did not give any finding in respect of the same. He further raised that agreement dated 17.05.1988 has not been considered by Page 9 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 the Mamlatdar and ALT, Ahmedabad and that was factually incorrect in observing that no action was taken by the petitioner as the petitioner had already given an application dated 30.03.2001 for mutating their names in the revenue record.
6.5 Learned senior advocate Mr.Shah further pointed out from the order dated 17.04.2017 passed by the Deputy Collector, Ahmedabad and submitted that the application preferred by the petitioner before the Deputy Collector was suffering from delay of 04 years is incorrect as the Deputy Collector has decided the appeal on merits. He further submitted that the Deputy Collector has committed an error by not considering the documents on record and by giving findings that Respondent Nos.6 to 8 are the distant relatives of the original owner and, therefore findings in respect of blood relations with the present petitioner and original land owners are absolute erroneous. Learned senior advocate Mr.Shah further challenged the order dated 14.10.2021 passed by the Gujarat Revenue Tribunal and submitted that the Gujarat Revenue Tribunal has failed to appreciate documentary evidence holding that land was cultivated by the petitioner before 10 years even before the Respondent Nos.6 to 8 purchased the land and that they were paid compensation. He further submitted that the Gujarat Revenue Tribunal also committed some error as committed by the Deputy Collector by believing that the present petitioner and the original owners of the land Page 10 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 belonging to the same family and Gujarat Revenue Tribunal has also failed to give any independent finding on the aspect. Learned senior advocate further questioned the locus of Respondent Nos.6 to 8 as they have sold to Respondent Nos.12 to 17 and submitted that they have no locus to oppose the petition filed by the petitioner.
7. Learned senior advocate relied upon following judgments and canvassed propositions of law that;
7.1 since the judgment relied upon in the decision of this Court in the case of Dudhiben Widow of Hirabhai Vallabhbhai Versus Ramanben, Wd/o. Manibhai Patel rendered in Special Civil Application No.9422 of 1996, dated 10.10.2012, is concerned, the prescribed limitation under the Mamlatdar Courts Act, 1906 would not be applicable in the case of petitioner as it is under Section 70B of the Bombay Tenancy and Agricultural Lands Act, 1948;
7.2 by relying upon the decision of this Court in the case of Thakore Lilaji Kesaji vs. Vallabhadas P. Parikh reported in 1996 (2) GLH 703, learned senior advocate submitted that in case if person cultivating the land is not in lawful possession, he can be said to be a deemed tenant; and 7.3 by relying upon judgment of this Court in the case of Desaibhai Shanabhai Patel and Anr. vs. Bhulabhai Prabhudas Patel and Ors. reported in 1996 (1) GLH Page 11 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 170, learned senior advocate Mr.Shah submitted that in a writ petition under Article 227 of the Constitution of India, no new facts can be permitted to be urged and also submitted that this Court may confine itself only to the facts and findings thereof which are on record in respect of proceedings under challenge and may not permit the Respondent Nos.6 to 8 to canvass any new fact.
7.4 By making aforesaid submissions learned senior advocate Mr.Shah prayed that by passing the order impugned and confirming the impugned orders, all authorities have committed grave error of law and hence all the three orders deserve to be quashed and set aside.
8.1 Per contra, learned senior advocate Mr.Anshin Desai for Respondent Nos.6 to 8 submitted that all the orders passed by the Mamlatdar and ALT, Deputy Collector and Gujarat Revenue Tribunal are well reasoned orders. All the three authorities have given cogent and convincing reasons and thereafter have rejected the application preferred by the present petitioners.
8.2 Learned senior advocate Mr.Desai tried to make certain submissions whereby some new facts were sought to be placed on record. However, learned senior advocate Mr.Desai was not permitted to make submissions in respect of those facts which were not on record. Hence, learned senior advocate Mr.Desai submitted that, in that case, he may be permitted to assist the Court in respect Page 12 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 of pointing out from the record that the orders passed by the authorities, which are under challenge, are passed by taking into consideration the material on record and are passed in accordance with law.
8.3 Learned senior advocate Mr.Desai submitted that this Court in a petition under Article 227 of the Constitution of India, while examining the orders passed by the Gujarat Revenue Tribunal and other revenue authorities, irrespective of locus of Respondent Nos.6 to 8, at least he may be permitted to assist this Court. Learned senior advocate submitted that if his locus is questioned, in that case, the Court may not consider the reply filed by Respondent Nos.6 to 8 in respect of any new facts, but only those orders which are already passed by the authorities and which touch the issue under consideration, may be taken into consideration and he may be permitted to point out from the record itself that the petitioner has no case.
8.4 In view of above, learned senior advocate Mr.Desai assisted by learned advocate Mr.Joshi was permitted to make submissions only by confining themselves to the impugned orders passed in the proceedings before the Mamlatdar and ALT, Deputy Collector and Gujarat Revenue Tribunal to which Respondent Nos.6 to 8 were parties.
8.5 Learned senior advocate pointed out from the orders Page 13 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 and submitted that the order passed by the Mamlatdar and ALT in Ganot Case No.11 of 2007 is well reasoned order. Mamlatdar and ALT, Daskroi, Ahmedabad has categorically observed that though the petitioners are claiming to have cultivated the land since 1985, the petitioners have not made any attempt to get their names entered in the revenue record since the year 1985. The document that was relied upon by the petitioner which is said to have been executed on 17.05.1988 allegedly by petitioner, was not part of record before the Mamlatdar and ALT. The diary, which is relied upon by the petitioner, after thoughtful consideration by the Mamlatdar and ALT, was not believed. Learned senior advocate further pointed out that as regards the name of the petitioner that when the land was acquired by ONGC, and the compensation was paid to petitioner is concerned, learned senior advocate submitted from the record, pointing out that, in respect of communication between ONGC and the present petitioner, certificate number is not mentioned. Learned senior advocate pointed out from the order passed by the Mamlatdar and ALT that there is no receipt produced by the present petitioner indicating that even on crop-share basis he was cultivating the land as there is no receipt produced on record which would indicate that share of crops was given to owner of the land. In respect of witnesses produced by the petitioner himself from the order, learned senior advocate pointed out that all the witnesses Page 14 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 including the witness Somaji specifically stated that he was unaware about the fact that for which purpose affidavit is filed by him and he has merely signed the affidavit as he was asked to sign by the present petitioner. Similarly another witness Ranjitsinh Vaghela deposed that he was unaware about the fact that in which capacity present petitioner is/was cultivating the land and he has never seen the petitioner sharing the crops. Similar way, witness Jarinabibi Saiyed also submitted that she does not know whether crop sharing was ever sent to Respondent Nos.6 to 8 or not. Except for the affidavits, the petitioner failed to produce any cogent and convincing documentary evidence in respect of the fact that petitioner was cultivating the land in question. The petitioner even did not cross examine the witnesses.
8.6 Learned senior advocate Mr.Desai pointed out from the findings relied upon by Mamlatdar and ALT that in respect of the documentary evidence produced by the petitioner before the Mamlatdar and ALT, survey numbers, block numbers of name of the land owners are not mentioned and, therefore, the same has not rightly been believed by the Mamlatdar and ALT, Daskroi, Ahmedabad. Further, learned senior advocate pointed out from the record that, at one point of time, the petitioner claimed that petitioner and Ambalalbhai happened to be distant relatives, however, subsequently by affidavit they have declared that they are noway connected with Ambalal. The contradictory stand of the petitioner would Page 15 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 indicate that petitioners were never cultivating the land in question and, therefore, they were rightly not declared tenants in the proceedings under Section 70B of 'the Act'.
8.7 Learned senior advocate by reading out the findings of Mamlatdar and ALT, Deputy Collector and Gujarat Revenue Tribunal submitted that the Deputy Collector, Daskroi have given cogent reasons while rejecting the application preferred by the petitioner. Both the authorities have rightly rejected the Revision Application as well as Revision Application preferred by the petitioner and, therefore, since under Article 227 of the Constitution of India this petition is preferred, this Court cannot re- appreciate the evidence and all what is required to be seen is whether findings recorded by the authority can be said to be erroneous or not.
8.8 Learned senior advocate submitted that there is no jurisdictional error, nor there is any material irregularity committed by any of the authority, there is no breach of principles of natural justice and in fact Mamlatdar and ALT adjudicated the issue after considering the deposition made by the witnesses and even the petitioners were cross-examined and, therefore, once the findings of the first authority deals with each and every issue in detail, this Court may not interfere with the findings recorded by the authority, exercising jurisdiction under Article 227 of the Constitution of India. He submitted that petitioners claim for declaring them to be Page 16 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 tenants was filed belatedly after a period of 22 years as though the petitioners were claimed to be tenant of the land in question since 1984 the application filed only in the year 2007. Learned senior advocate further pointed out from the record that the original land owners were not impleaded as party respondents in the present proceedings by the present petitioner and no revenue records right from the year 1984-85 are produced to establish that petitioners were cultivating the land in question. Section 63 read with Section 84(C) of 'the Act' have already attained finality and though those proceedings were initiated prior to the year 2007 only, after the proceedings were initiated for breach of Section 63 of 'the Act' and for initiating proceedings under Section 84(C) of 'the Act', the petitioners preferred application for the first time in the year 2007 for declaring them as 'tenants' by making application under Section 70B of 'the Act'.
8.9 Though the Mamlatdar and ALT rejected his application in the year 2010, since at that time the proceedings under Sections 63 and 84(C) of 'the Act' were pending, the petitioner acted as 'fence-seater ' and did nothing and challenged the order passed by the Mamlatdar and ALT only in the year 2007 after Respondent Nos.6 to 8 succeeded before the Mamlatdar and ALT, Deputy Collector and ultimately proceedings under Sections 63 and 84(C) of 'the Act' were dropped or the order passed by the Mamlatdar and ALT vesting the Page 17 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 land into the Government under Section 84(C) of 'the Act' was quashed and set aside by the Deputy Collector. By making aforesaid submissions learned senior advocate Mr.Desai prayed for dismissal of the present petition.
9. Learned senior advocate Mr.Desai relied upon following judgments.
9.1 decision of this Court in the case of Chanchalben wife of Bhagwandas Ranchhoddas and another vs. Keshavbhai Kalyanbhai reported in 2018 (4) GLR 2973;
9.2 decision in the case of Raj Kumar Bhatia Versus Subhash Chander Bhatia reported in (2018) 2 SCC 87;
9.3 decision in the case of Bathutmal Raichan Oswal Versus Laxmibai R. Tarta and another reported in (1975) 1 SCC 858; and 9.4 decision in the case of Savitaben Jamabhai Gohil Versus Kantilal Ambalal Patel Power of Attorney reported in 2014 (1) GCD 246.
9.5 By citing aforesaid four judgments, learned senior advocate Mr.Desai submitted that the scope of interference by this Court under Article 226 of the Constitution of India is very limited. By relying upon the aforesaid judgments, learned senior advocate submitted that this petition being under Article 227 of the Constitution of India, this Court cannot reappreciate the Page 18 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 evidence as if sitting in appeal or tribunal. He submitted that there are concurrent findings it would not be open for this Court to interfere with the same by reappreciating the evidence. He submitted that all the three authorities i.e. Mamlatdar, Deputy Collector and Tribunal have given cogent reasons in respect of finding of facts and, therefore, now in a writ petition under Article 226 of the Constitution of India this Court cannot interfere with the findings of fact.
10. Heard learned Assistant Government Pleader Mr.Akash Chhaya for the State. He also took this Court to all the three orders, which are impugned, in this petition and from the aforesaid orders pointed out that all the three authorities have taken into consideration the factual aspects and thereafter have given their concurrent findings by appreciating the material on record. Learned Assistant Government Pleader Mr.Chhaya pointed out from all the three aforesaid orders that the Mamlatdar and ALT, Daskroi had taken into consideration every single aspect, which was canvassed before him and thereafter vide order dated 18.01.2010 rejected the application of the petitioner preferred under Section 70B of 'the Tenancy Act'. He submitted that even the Deputy Collector also, in an appeal under Section 74 of the Act, re-appreciated the evidence and on re- appreciation of evidence came to the conclusion that the order passed by the Mamlatdar and ALT Daskroi dated 18.01.2010 is just, legal and proper and ultimately Page 19 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 dismissed the appeal. Even the Revision Application preferred by the petitioner was also rejected by the Gujarat Revenue Tribunal by taking into consideration the order passed by the Mamlatdar and ALT and the order passed by the Deputy Collector and after considering the matter on merits. He submitted that the Gujarat Revenue Tribunal took into consideration the totality of the facts and circumstances and also considered the proceedings initiated under Section 84(C) of the 'Tenancy Act' and, therefore, in view of the aforesaid concurrent findings of fact, which is based upon the material available on record and after taking into consideration the totality of the facts and circumstances, he submitted that the petition be dismissed.
10.1 In view of the aforesaid submissions made by learned Senior Advocate Mr.Desai as well as learned Assistant Government Pleader Mr.Chhaya, this Court has examined all the three orders which are impugned in this petition. Learned Mamlatdar and ALT, Daskroi, while rejecting the application of the petitioner, has categorically observed that the present petitioners - the applicants before the Mamlatdar and ALT vide pursis dated 30.12.2009 stated that they do not want to cross- examine the witnesses. The Mamlatdar and ALT has specifically observed that the present petitioners are claiming that they are in possession of the land in question since 1985, yet they have not taken any action to mutate their names in the revenue record so as to Page 20 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 establish that they were cultivating the land in question. There was no evidence produced by the petitioners before the Mamlatdar and ALT to establish that they are in possession of the land in question by virtue of tenancy right. Learned Mamlatdar and ALT also has categorically stated that the original land owners were not joined as party in the proceedings before him and, therefore, the very application under Section 70B of 'the Tenancy Act' preferred by the petitioners is rejected. The Mamlatdar and ALT also had specifically observed that there is no documentary evidence produced before him to establish that the land was given for cultivation to the present petitioners by Babulal Kansara. Further there is no agreement to that effect to show that the land was given for cultivation to the petitioners. The petitioners were not believed by the Mamlatdar and ALT as there was no evidence produced before Mamlatdar and ALT to substantiate the claim of the petitioner that land was given to them for cultivation on the basis of crop-share. Whatever documentary evidence the petitioners produced before Mamlatdar and ALT did not mention any survey number on the same and, therefore, those documentary evidence were rightly not believed by the Mamlatdar and ALT.
10.2 Ultimately the Mamlatdar and ALT, Daskroi rejected the application preferred by petitioners which was carried in appeal before the Deputy Collector (Land Reforms), Ahmedabad being Appeal under Section 74 of Page 21 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 'the Tenancy Act'. The Deputy Collector (Land Reforms), Ahmedabad, though the appeal was preferred after delay of four years, considered the appeal preferred by the petitioners on merits and held that the petitioners could not produce any evidence to the effect that they were cultivating the land in question even 10 years prior to the date on which the respondents purchased the land in question. The Deputy Collector also observed that the petitioners failed to produce any evidence as regard sharing of the crops. Learned Deputy Collector also observed that the documentary evidences produced by the petitioner before the Mamlatdar and ALT did not bear the details about the land and the evidences produced by way of documentary evidence list do not bare names of petitioners in respect of the land in question. There is a contradiction by the petitioners themselves in respect to their relation with Ambalal Marghabhai. At one point of time, Ambalal Marghabhai was said to be distant relative, whereas at another point of time the petitioners completely disowned said Ambalal Marghabhai by way of affidavit and, therefore, the Deputy Collector (Land Reforms), Ahmedabad rejected the appeal.
10.3 Even the Gujarat Revenue Tribunal also examined both the aforesaid orders and it also took into consideration the parallel proceedings going on in respect of 84(C) of 'the Tenancy Act' and found that the petitioners could not produce any evidence to show that they were cultivating the land in question by way of Page 22 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 tenancy rights, prior to ten years from the date on which respondents purchased the land in question. The Tribunal after taking into consideration the totality of facts and circumstances of the case confirmed the order passed by the Mamlatdar and ALT and the order passed by the Deputy Collector by rejecting the Revision Application preferred before him by the petitioners.
10.4 In view of the aforesaid concurrent findings of fact based on the materials available on record, which are in the form of affidavits and revenue record, if the aforesaid three orders passed by the three different authorities are considered in light of judgments cited by both the learned senior advocates, in that case, the ratio of the judgments relied upon by learned advocate Mr.Shah in case of Dudhiben Wd/o. Hirabhai Vallabhbhai (supra) including the aforesaid judgments are concerned, it is in respect of the fact that Section 12 of the Mamlatdar Courts Act, 1906 ('the Court Act', for short) would not apply in the facts of the present case as that ratio would not help the petitioners since the case of the petitioners was considered on merits by all the three authorities. As far as the judgment in case of Thakor Lalji Kesaji (supra) is concerned, there the Court held that when the person cultivating the land was not in unlawful possession, he can be said to be the 'deemed tenant'. However, aforesaid judgments also would not help the petitioners for the reason that this petition being under Article 227 of the Constitution of India, when there are concurrent findings Page 23 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 of facts, which would indicate that the petitioners could not produce any material before the authority, which can establish that petitioner was in lawful possession of the land in question even prior to 10 years before the land was purchased by the respondents, these judgments would not help the petitioner.
10.5 As far as the judgment in case of Desaibhai Shanabhai Patel (supra) is concerned, since this Court has not taken into consideration any new material, which is produced by the respondents along with its reply, the same also would not help the petitioner as for deciding the present petition, this Court has only taken into consideration material that the petitioner has produced and, therefore, this judgment would not help the petitioner.
10.6 As far as judgments cited by learned senior advocate Mr.Anshin Desai are concerned, it is well settled position, by now, that in a petition under Article 227 of the Constitution of India, this Court cannot re-appreciate the evidence and, therefore, this Court has confined itself only to the extent of reasonings given by all the three authorities and whether the authorities have committed any error while arriving at conclusion given by it or not ?
11. On perusal of all the three orders passed by the authorities, this Court is of the view that none of the authorities have committed any error which would call for Page 24 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022 C/SCA/899/2022 JUDGMENT DATED: 21/03/2022 any interference by this Court, in a petition under Article 227 of the Constitution of India. Therefore, the petition deserves to be dismissed and it is dismissed accordingly. Rule is discharged. No order as to costs.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 25 of 25 Downloaded on : Sat Dec 24 13:18:36 IST 2022